Federal court partially blocks Trump’s transgender military ban News
Federal court partially blocks Trump’s transgender military ban

The US District Court for the District of Columbia [official website] on Monday granted [order, PDF] a preliminary injunction against portions of President Donald Trump‘s [official profile] transgender military ban. The Court also granted portions of the government’s motion to dismiss, effectively leaving in place the retention and accession policies as they were before the issuance of Trump’s presidential memorandum [text] in August, and allowing the portion of the directive halting expenditures for sex reassignment surgery to remain in effect.

In June 2016, the Department of Defense (DOD) [official website] signaled a departure [JURIST report] from its long-established policies banning recruitment of openly transgender military personnel. Approximately a week later, a formal announcement [JURIST report] arrived from then Secretary of Defense Ash Carter [official profile] who introduced the government’s new policy that allows transgender individuals to serve openly in the military, effective immediately.

This approach was to be fully implemented in July of this year, but the government reversed course [JURIST report] under the Trump administration. The new policy not only indefinitely extended “a prohibition against transgender individuals entering the military” (the Accession Directive) but also required the military to authorize, by no later then March 23, 2018, the discharge of transgender service members (the Retention Directive).

The plaintiffs in this case are current and aspiring transgender service members, some of whom have been have served in the military for decades, and have been on active duty in Afghanistan and Iraq. The plaintiffs filed a motion for a preliminary injunction against Trump’s August memorandum alleging that the directives in the order “violate the fundamental guarantees of due process afforded by the Fifth Amendment [GPO backgrounder] to the United States Constitution.”

The defendants filed a motion to dismiss the case on jurisdictional grounds stating among other things that
“the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.”

Judge Colleen Kollar-Kotelly granted the preliminary injunction against the accession and retention directives, and denied the defendant’s motion to dismiss in this regard stating that:

Plaintiffs have established that they will be injured by these directives, due both to the inherent inequality they impose, and the risk of discharge and denial of accession that they engender. Further delay would only serve to harm the Plaintiffs. … As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. … The Court finds that a number of factors — including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself — strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

However, the court granted the defendant’s motion to dismiss the plaintiff’s challenge concerning the prohibition against the expenditure of military resources on sex reassignment surgeries for lack of jurisdiction, and additionally dismissed without prejudice plaintiff’s estoppel claim stating that the “Complaint lacks allegations of the sort of particularized representations, reliance, or government misconduct that could justify estoppel.”